The Upside of Taking a Deposition from Your Office
Kate Kowalewski, Esq.
Schwartz Semerdjian Cauley & Moot LLP
In today’s world, technology has had a major impact on how people live and work. Many people use video chat programs like Skype, FaceTime or Google Hangouts to stay connected with family and friends who live far away. Like many San Diegans, I am a transplant with most of my family living in the Midwest but with Facetime, my son is able to not only talk but also to interact with my family and connect with them on a more meaningful level than if we simply used the telephone.
This changing technological landscaping is not only impacting our personal lives but it is also having a significant impact on the practice of law. For example, many attorneys do not have an actual office but instead operate a virtual office, opting to work remotely from home. Even in my case while I do have an office, I also have the ability to work from home as the need arises as I can easily log into my firm’s network from my laptop via the internet.
As technology is becoming more integrated with the practice of law, more attorneys are turning to virtual or internet-based platforms for out-of-town depositions as opposed to spending the time and money to travel to distant locations. Despite the advances in technology, some attorneys remain hesitant to conduct remote video depositions as the term conjures up images of listening in over speakerphone or connecting people in a couple of boardrooms with sketchy videoconferencing equipment. Nonetheless, many court reporting agencies now offer convenient and reliable virtual platform options. Unlike Skype and FaceTime, these virtual platforms were designed specifically to enable remote depositions, with HD-quality video connections for multiple deposition participants, as well as real-time streaming text from court reporters.
A remote deposition typically works as follows: If the deposition is held in the United States, the witness and the court reporter will be at the deposition site along with any other attorneys and participants that will be in attendance. A laptop with a webcam and an internet connection is used to transmit the video feed. Remote participants navigate to and log into a secured website in order to gain access to the deposition. A major concern for attorneys considering taking depositions remotely is the ability to share and control the documents. However, many of the new platforms allow the participants to share documents with the other parties in real-time. The documents are uploaded prior to the start of the deposition. Thereafter, during the deposition, the attorney can decide which document to share at what time.
Obviously there is value to being in the same room with a deponent and in-person depositions should be used as often as possible. However, there are times when it makes more sense for a deposition to be taken remotely. Often with litigation, there are minor out-of-state deponents. Traditionally this meant attorneys from several different locations had to spend time and their client’s money to travel out-of-town for the deposition. In these instances, the clients may benefit from remote video technology.
By far the most significant benefit of engaging in remote depositions is the ability to save your client thousands of dollars as remote depositions cost only a fraction of the amount that a traditional out-of-town deposition costs. According to one court reporter I contacted, they offer live remote depositions starting at $395 per day for the first two connections; compare this with the cost of airfare, airport parking, taxis and a hotel stay as well as the attorney’s fees for traveling. Another benefit is the ability to save you time. By using remote deposition technology, an attorney can spend less time traveling and more time focusing on providing his or her clients with substantive work product.
Sarah Brite Evans, a Partner at Schwartz Semerdjian, recently took her first remote deposition. Faced with the prospective of traveling out-of-town in order to take a two-hour deposition, Evans opted to take the deposition from the comforts of her own office. She had a positive experience with the deposition and plans on engaging in more remote depositions in the future when it makes sense under the circumstances. As Evans explained:
The remote video deposition option is a great one for attending, defending, even taking depositions. There are certainly depositions for which an in-person appearance is necessary, and I would never do those remotely. But often, watching on a video stream and speaking/hearing through a telephone line can be just as beneficial and save clients thousands of dollars. If I know that I can save our client unnecessary costs and fees while getting the same information and testimony remotely, then I want to go that route when it is available.
Remote depositions do not only make sense from a time and cost perspective but they also may be required in order to efficiently and zealously represent your client. While attorney’s ethical obligations have not changed over the years, the technology for managing information and litigating cases has. Some attorneys are comfortable with taking an old school approach when it comes to litigation. They may be willing to step out of their comfort zone in tackling a novel area of the law but when it comes to using a new type of technology in managing the case, they prefer to stick with the methods they know.
Nonetheless, by failing to even consider remote deposition technology for out-of-town depositions, an attorney may be violating his or her ethical duties owed to his or her clients. In order to meet the ethical duty of competence, attorneys must keep up with new technology that relates to the practice of law. This is not to say that you must immediately adopt every new untested technology out there but rather as new technologies develop and become integrated with the practice of law, you should analyze the risks and benefits of the new technology and be prepared to implement technology that will have a meaningful impact on your client’s case.
In Formal Opinion 2015-193, the California State Bar’s Standing Committee on Professional Responsibility and Conduct recently considered an attorney’s ethical duties in the handling of discovery of electronically stored information. In the Opinion, the Committee discussed the need for attorneys to remain competent by not allowing the ever-changing technological landscape to pass them by:
Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent. Maintaining learning and skill consistent with an attorney’s duty of competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . . .” ABA Model Rule 1.1, Comment .
Several federal judges have indicated the federal rules impose a duty on the parties to consider remote depositions, depending upon the circumstances involved in the case. In a recent Fair Credit Reporting Act case in the Northern District of California, Magistrate Judge Howard R. Lloyd granted Plaintiffs’ Motion for an Order to Permit Depositions by Remote Means, holding that “remote depositions would be effective, efficient, and cost-effective in this case”. Lopez v. Cit Bank, N.A. No. 15-00759-BLF (HRL), Dkt. No. 55
In Lopez, Plaintiffs argued that many of the depositions would take place outside of California and that remote depositions would be a cost-effective method for taking these depositions. Plaintiffs further argued that Defendants violated a standing order issued by Magistrate Judge Lloyd regarding discovery disputes by refusing to even discuss the matter with Plaintiffs.
The Court rejected Defendants initial argument that technical problems might occur and make remote depositions ineffective as being speculative. As the Court indicated:
This court has repeatedly observed that remote videoconference depositions conducted through software like Skype tend to be an effective and efficient means of reducing costs. Guillen v. Bank of America Corp., Civ. No. 10-5825-EJD (PSG), Dkt. No. 78 at 1-2; see also Trejo v. Macy's Inc. et al., Civ. No. 13-2064-LHK, Dkt. No. 52 at 2-3. Likewise, this court has noted that leave to conduct depositions by telephone should be liberally granted and that a desire to save money constitutes good cause to depose out-of-state witnesses through remote means. Guillen, supra at 1; Trejo, supra at 3.
The Court further rejected Defendants argument that reviewing numerous complicated exhibits remotely would be impracticable on the basis that “[m]odern videoconference software permits participants to quickly and conveniently share documents and images with each other.”
Given Defendants refused to even have an in-person conversation with Plaintiffs about the possibility of taking depositions remotely, the Court found Defendants had violated the judge’s standing order regarding discovery. Hence, the Court granted Plaintiffs’ motion for permission to conduct depositions by remote means, both due to Defendants violation of the standing order and due to the merits of Plaintiffs’ request.
I will add that while several federal judges have held that Skype is an acceptable means for conducting depositions remotely, many attorneys opt to use a remote video deposition platform instead. These platforms not only offer more security and reliability but also are more convenient as they were specifically designed for remote depositions, including providing methods for sharing documents. Additionally, many states require a court reporter to be present with a witness for being properly sworn in and a court reporting firm will arrange for one to be with the witness if it is required.